Bias Comments Win New Trial For Inmate

February 21, 2004|By Christopher Sherman, Sentinel Staff Writer

A defense attorney's admission of his own racial prejudice may have been a calculated tactic to put a jury on guard for its own bias, but the Florida Supreme Court ruled this week that it also helped put his client on death row, and for that Henry Alexander "Sweetman" Davis deserves a new trial.

During the 1990 trial, Davis' court-appointed attorney Dan Brawley addressed members of an all-white jury on the subject of race, a tactic he later said was meant to get jurors to admit their buried feelings on the subject.

"Sometimes I just don't like black people. Sometimes black people make me mad just because they're black," he told them. "And, you know, I don't like that about myself. It makes me feel ashamed." Brawley asked each juror if they shared his feelings. Those comments to jurors undid Davis' conviction. The high court ruled Thursday it was "greatly disturbed" by Brawley's comments.

Davis, 38, was convicted of the March 18, 1987, slaying and robbery of Joyce Ezell, a 73-year-old Lake Wales woman who hired him to do yard work. Ezell was found in the foyer of her home with 21 stab wounds. Jewelry, silver and Ezell's car were missing from the home. On Jan. 11, 1990, jurors recommended the death sentence.

Today, three Polk County women will rise at 4:30 a.m. to visit Davis on death row at Union Correctional Institute in Raiford.

"We are looking forward to celebrating it with him tomorrow," his sister Alma Davis said Friday. "This will be quite an exciting visit."

Davis, along with her sister Cheryl Davis-Rowell and mother Barbara Stoudemire -- aunt to NBA star Amare Stoudemire, who attended Orange County's Cypress Creek High School -- already had planned to make the visit before learning of the Supreme Court decision.

The justices ruled that Davis did not receive a fair trial because of an ineffective legal defense by Brawley, who also returned to the subject in his penalty-phase closing argument.

"I will not believe that race will be a factor in your decision, but I will ask you to be especially vigilant, because being a white Southerner, I know where I come from. And I told you a little bit when we were questioning you as to potential jurors about some feelings that I have, and maybe very deep down y'all have them too."

Brawley would not comment.

In an unsigned opinion, Supreme Court justices said they were "greatly disturbed by trial counsel's blatant acknowledgment to the jury, in defending an African-American defendant accused of an interracial crime, of his negative feelings toward `black people just because they're black.' "

Chief Justice Harry Lee Anstead and Justices Charles Wells, Barbara Pariente, R. Fred Lewis, Raoul Cantero and Kenneth Bell concurred in the opinion. Justice Peggy Quince, the only black justice on the high court, recused herself because as a former assistant attorney general, she stays clear of capital cases handled by her old office.

Anstead added his own to praise the jurors. "[W]e should be especially thankful for the courage and conviction of these citizens to reject counsel's improper suggestion that they must surely suffer from the same affliction he had," he wrote.

The justices also cited Brawley's failure to pursue evidence that could have potentially changed the outcome of Davis' case. During the trial, Brawley rested without presenting a case and did not call two black witnesses whose testimony would have implicated two others in the murder. "Both witnesses would have supported the defense theory that, although Davis may have been present during or immediately after the killing, he did not commit the murder," the justices wrote.

Brawley "never followed up on the things we told him to," Alma Davis said. Her brother was living with her at the time of the murder and he had a good relationship with Ezell, for whom he had worked for several years, she said. "He just never did get a fair trial."

Davis remembered her brother's attorney as a good artist.

"He would sit there and draw during the trial," she said. Brawley drew the judge, the jury and the prosecutor, she said.

But Earnest Stoudemire, a retired senior detective with the Lake Wales Police Department who worked the case, said he still thinks the police got the right man.

"I'm positive that we did a thorough job in our investigation," said Stoudemire, whose brother was Davis' stepfather. "The case we made was pretty solid."